From Levi Lincoln
Washington Feby 2d. 1802.
After the utmost attention which I have been able to pay to the questions, respecting the northwestern territory, which you did me the honor of submitting to my consideration there is a difficulty in giving a decisive answer. I can find no grounds, or principles for a very confident decision in, or out of the ordinance for the establishment of that Government. Nothing can be collected to aid the enquiry, from the acts by which similar Governments in other territories have been established, or from the journals of the proceedings of the assembly and the Governor of this territory, altho some of these very questions have been the subjects of zealous debate—
The territory is, as yet, considered to be under what is called its temporary Government by the ordinance. That expressly provides that all majestrates and other civil officers, shall during the continuance of the temporary Government, be appointed by the Governor, unless otherwise therein directed. It also ordained that there should be a court appointed, to consist of three judges, who should have a common law jurisdiction and reside in the district, and, expressly, that Congress should appoint the Governor, the Secretary, and all military general officers. In the 12th paragraph of the ordinance, it is said the Governor, judges, legeslative council secretary and such other officers as Congress shall appoint, in the district, shall take an oath &c—In the direction for taking the oath of office there is a strong implication of the right of Congress or, rather, of the President to appoint these three judges, and I am informed, this has been the practice. Independent of this practice,1 upon the mere construction of the ordinance, I should have hesitated in deciding against the right of the Governor to have made even these appointments. The authority of making appointments is, expressly, given to the Governor in all cases, in which it is not otherwise directed, and express positive provisions are not usually abridged by implications. As this implication does not necessarily extend beyond the three judges before named, I am inclined to think the Governor is justified by the ordinance in his appointment of all other judges & officers—
It is provided, by the 7th paragraph of the ordinance that the Governor, previous to the organization of the General assembly, shall appoint such majestrates, and other civil officers in each County and township as he shall find necessary for the preservation of the peace, and good order in the same; and that after the general assembly shall be organized, the powers and duties of majestrates, and other civil officers, shall be regulated and defined by the assembly. After the formation of the general assembly, they, are to determine what powers & duties are necessary to be exercised in existing counties & townships, & to define & regulate the same, for the preservation of peace & good order, This seems to involve the necessity of their determining what description of2 majestrates & officers should possess these powers & discharge those duties. They having done this, the Governor is to make the appointments. The Provision in this paragraph appears to me to amount to this, that before the general assembly was organized the Govr. was to appoint such officers as he might judge to be necessary, afterwards, such as the legislature should judge to be necessary.—
The 8th paragraph of the ordinance provides, that for the prevention of crimes, the laws to be adopted or made shall have force in all parts of the district. And for the execution of processes civil and criminal, that the Governor shall make proper divisions, and from time to time, as circumstances should require, lay out such parts of the district, in which the indian title shall have been extinguished, into Counties and townships, subject however to such alterations as may, thereafter, be made by the legislature. The Authority which the ordinance gives to the legislature is, in general terms, to make laws in all cases for the good government of the district, not repugnant to the principles and articles of the ordinance.
The laying out of Counties and towns are usually considered as legislative acts, and in the present instances must be considered as appertaining to the legislature, unless, by a proper construction of the ordinance, it is secured to the Governor—It being once confessedly vested in him, & by general terms implying no limitation in point of time, the authority must be considered as still remaining with him, unless it is taken away, expressly, or by some strong implication, or by some unforeseen change of the subject matter, upon which, or of the circumstances under which the power is exercised—The civil and criminal processes, the Execution of which, were to be the means of preventing crimes and injuries, and which were to be effectuated by a division of the described parts of the district into counties & townships, are, recognized by the 9th paragraph of the ordinance to be such as should originate under made, as well as, under adopted laws, and if so it implys a power in the Governor to lay out counties & towns after the Genl assembly were sufficiently organized for the making of laws. This construction of the 8th paragraph is in some degree confirmed by the express limitations of the Governor’s power contained in the 5th & 7th—as there was the same reason for being explicit in the first, as in the two last, if the same thing was intended—It, to my mind, appears to be further confirmed by an express power being given to the legislature to alter such townships and counties as shall have been laid out. On the idea, of the authority to lay out Counties, being vested in the Governor, after the formation of a legislature, this was necessary, otherwise not.
The ordinance provides, that, in case of the death or removal from office of a representative, the Governor shall issue a writ to the County or township for which he was a member, to elect another in his stead. I perceive no question on the Governor’s transactions respecting the election of representatives, as returned by the secretary, excepting in reference to Meigs, who is said to have left the territory—If he had not resigned, previous to the issuing of the writ for the election of a representative in his stead, I conceive the writ must be considered as issuing illegally. Knowing that some very respectable Gentlemen are decidedly of the opinion, that the Governor has no right to lay out Counties under the ordinance, I have slept many nights, on my first impressions on the subject, and am still inclined to the opinion I have above expressed, notwithstanding any thing I have been able to learn respecting the matter,—I have the honor to be Sir with the highest respect & Consideration your Hum. Sevt
RC (DNA: RG 59, LOAG); at head of text: “The President of the U States”; endorsed by Jacob Wagner. Printed in the first volume of the Official Opinions of the Attorneys General of the United States (Washington, D.C., 1852), 102–6.
Congress had passed the ordinance for the establishment of a government for the Northwest Territory on 13 July 1787. In Lincoln’s references to sections of the law, he counted the title, “An Ordinance for the government of the territory of the United States North west of the river Ohio,” as the first paragraph (Terr. Papers description begins Clarence E. Carter and John Porter Bloom, eds., The Territorial Papers of the United States, Washington, D.C., 1934–75, 28 vols. description ends , 2:39–50).
The ordinance, which was adopted under the Articles of Confederation, specified that the territory’s governor should take the oath of office “before the President of Congress” and that the judges, legislative council, and secretary should take the oath before the governor (same, 45).
The eleventh paragraph of the ordinance granted the legislature its general authority to Make Laws. Counties and townships were recognized in the ninth paragraph as the basis for representation in the assembly. 5TH & 7TH: the fifth paragraph of the ordinance enabled the governor and judges to adopt laws that would “be in force in the district until the organization of the general assembly therein, unless disapproved of by Congress; but afterwards the legislature shall have authority to alter them as they shall think fit.” The seventh paragraph said that the governor could appoint magistrates and county or township officials until the legislature was organized, but after that “the powers and duties of magistrates and other civil officers shall be regulated and defined by the said Assembly.” The eighth paragraph said nothing about any change in the governor’s power to make counties and townships with the advent of the legislature (same, 42–5).
Provision for writs of election following the death or removal of assemblymen was in the tenth paragraph of the ordinance. The transcript of the territory’s executive proceedings that TJ sent to Lincoln on 28 Jan. evidently included a record of the writ of election that Arthur St. Clair issued to fill the assembly seat vacated by Return Jonathan Meigs. In 1801, Meigs became U.S. agent for the Cherokee Indians and the War Department agent for Tennessee (same, 44; Terr. Papers description begins Clarence E. Carter and John Porter Bloom, eds., The Territorial Papers of the United States, Washington, D.C., 1934–75, 28 vols. description ends , 3:531; Vol. 34:86n).
1. MS: “pratice.”
2. Preceding two words interlined.